Larry Behrens, a former spokesman for Gov. Susana Martinez as well as a spokesman for House Republicans, now works for Power the Future. No, that’s not some old Public Enemy album. It’s a Washington, D.C.-based organization that bills itself as “the voice of energy workers pushing back on radical green groups and the ideologues who fund them.”
Power the Future doesn’t like New Mexico’s new Energy Transition Act. Thus, a few weeks ago, Behrens filed a public records request with the Legislative Council Service asking for various emails and other communications to and from Sen. Jacob Candelaria, D-Albuquerque, related to the energy legislation.
I don’t know exactly what Behrens wanted to do with these emails. Typically, advocacy groups of any political stripe make such requests to make the other side look bad. It’s a routine occurrence and nothing to be shocked at. Sometimes, I suppose it’s possible they’re looking for potential weaknesses in the bill. And if I want to put on my goody two-shoes, maybe he only wanted to learn more about the legislative process. (Yeah, that’s the ticket!)
But the truth is, it’s nobody’s business what he wanted to do with the emails. State law gives us all the right to inspect most records from public agencies — advocacy groups, lawyers, political parties, energy workers and their “voices,” radical green groups, reporters, everyone. State agencies have to let citizens look at their records.
In mid-September, Behrens received a reply from Raul Burciaga, director of the Legislative Council Service. He said his agency found about 376 emails responsive to Behrens’ request. However, Burciaga told him that all but four of those were “confidential and privileged.”
Before we get mad at Burciaga, he can honestly say he’s just doing his job.
The main culprit was a rule passed by the Legislature near the end of the 2013 session.
At the time, there were still reverberations from the disclosure that Behrens’ old boss, Martinez, and her staff routinely communicated via private email. That set off calls for more transparency — including the Legislature.
Though plenty of lawmakers expressed shock and anger over the executive branch trying to keep its communications off government servers, few in the House or Senate supported a call by both the Republican governor and Attorney General Gary King, a Democrat who would run against Martinez in 2014.
And in fact, in a proud display of widespread bipartisan cooperation, both chambers joined hands and voted overwhelmingly for a new rule that would codify the exact opposite of transparency.
In the Senate, only one member, Sen. Pete Campos, D-Las Vegas, voted against the information clampdown.
In the House, it passed 48-16. Among the 16 in opposition, eight were Republicans and eight were Dems, including Rep. Brian Egolf, D-Santa Fe, who now is speaker of the House.
Jon Boller, a Legislative Council Service lawyer, explained the rule to me in an email last week.
The 2013 rule, he said, “addresses how all legislative agencies should handle [Inspection of Public Records Act] requests, and maintain confidentiality for any requests for service made to those agencies. Thus, information related to drafting or amending a bill would be confidential, while any bill, substitute or amendment introduced in committee or on the floor would be a public record subject to disclosure.”
Of the 376 emails the Legislative Council Service withheld from Behrens, 346 were communications between the energy bill’s sponsor, Candelaria, and Julia Barnes, a policy analyst for Egolf.
I sincerely doubt there’s anything sinister in any of the “confidential and privileged” emails. But because they haven’t been released, we’ll never really know.
But besides the 2013 rule, the other reason given in Behrens’ rejection letter for keeping those emails secret was the “privileges and immunities” clause of the state constitution.
“In short, legislative privilege protects lawmakers from being compelled to provide testimony or produce documents related to their official legislative actions,” Boller wrote. “Courts have also recognized that the privilege extends beyond speeches and debate on the floor of the chamber to other acts that relate to an integral part of the deliberative and communicative process of legislating, such as information gathering, conducting investigations and publishing reports.”
I’m not a lawyer, but this seems like a big stretch of the original intent.
For one thing, one section of the clause never has been enforced. “And [legislators] shall not be questioned in any other place for any speech or debate or for any vote cast in either house.”
If taken literally, then I and every other Capitol reporter violates the constitution virtually every day during a session. It’s our job to question these guys.
Maybe I shouldn’t have pointed that out.